Gurvich v. Tyree

• Decision Date: 21 February 1985
• Docket Number: No. 13-84-436-CV,13-84-436-CV
• Parties: William GURVICH, Appellant, v. Dr. James TYREE, et al., Appellee.
• Court: Texas Court of Appeals

Page 39

694 S.W.2d 39

William GURVICH, Appellant, v. Dr. James TYREE, et al., Appellee.

No. 13-84-436-CV.

Court of Appeals of Texas Corpus Christi.

Feb. 21, 1985.

Rehearing Denied March 28, 1985.

Andrew J. Lehrman, Corpus Christi, for appellant.

Paul M. Green, San Antonio, Steve Hastings, Corpus Christi, for appellee.

Before BISSETT, ¹ UTTER and KENNEDY, JJ.

OPINION

Gerald T. BISSETT, Justice.

This is an appeal from an order which granted a temporary injunction. We reverse and dissolve the injunction.

William Gurvich, hereinafter referred to as "appellant," in August of 1978, sought medical attention from Dr. James Tyree and Dr. Martin E. Hanish, hereinafter referred to as "appellees". Appellant is a resident of the State of Louisiana, and appellees are residents of the State of Texas, who maintain offices in Corpus Christi, Nueces County, Texas. Appellant, while hospitalized in Spohn Hospital in Corpus Christi, Texas, in August and September, 1978, received medical care and attention from appellees and from Drs. Gardner, Goodman, Arnold, Faint, Henry, Heslep and Capps, a partnership, hereinafter referred to as "radiologists". After being discharged by appellees, appellant returned to his home in New Orleans, Louisiana for further treatment by a doctor in New Orleans. In due time, appellees sent appellant their bill for medical services furnished to appellant, which he did not pay.

On June 22, 1979, appellees filed suit against appellant in the District Court of Louisiana for Orleans Parish to recover the sum of $2,750.00 for medical services rendered, together with interest thereon and attorney's fees. This case will henceforth be referred to as the "Louisiana Case".

On August 6, 1979, appellant filed suit against the radiologists in the 105th District Court of Nueces County, Texas, to recover damages for alleged negligence which proximately caused his injuries. This case will henceforth be referred to as the "Texas Case."

On August 6, 1979, appellant filed an answer in the Louisiana Case to appellees' petition, and also filed a "reconventional demand" (the Louisiana equivalent of a Texas counterclaim) against appellees wherein he sought to recover damages for alleged medical malpractice.

On August 22, 1979, the radiologists filed a general denial in the Texas Case.

On January 6, 1981, the radiologists filed a third party petition in the Texas Case against appellees, and alleged that should any liability be found to exist in the action brought by appellant against them, then such liability is that of appellees, as third party defendants, and not that of the radiologists, third party plaintiffs.

On May 18, 1984, appellees filed what they designated as "Third Party Defendants' Cross Action" against appellant in the Texas Case. In that pleading, they alleged: 1) that they will suffer irreparable harm if appellant is not enjoined from further proceeding on his reconventional demand against them in the Louisiana Case; 2) that they, appellant and the radiologists have a real and bona fide controversy over who, if anyone, is legally responsible for the damage allegedly sustained by appellant; and, 3) that appellant is indebted to them in the amount of $2,750.00 for necessary medical expenses rendered during August and September 1978, for pre-judgment interest thereon from September 20, 1978, and for reasonable attorney's fees. In addition to asking for the issuance of a temporary injunction, appellees prayed "that they be granted declaratory judgment that they are not liable for medical malpractice to William Gurvich or, alternatively, that Defendant Radiologists are solely liable to William Gurvich or, alternatively, that Defendant Radiologists and Tyree and Hanish are jointly and severally liable to William Gurvich in an amount to be determined by the jury."

On June 1, 1984, appellant filed a motion in the Louisiana Case to set the cause for trial on the merits. The court, by order dated August 21, 1984, set the cause for trial on November 15, 1984.

On October 30, 1984, following a hearing, the court in the Texas Case granted appellees' application for temporary injunction. The court, in its judgment, found that the application should be granted in order to 1) protect the court's jurisdiction, 2) avoid a multiplicity of suits, and 3) and permit a final adjudication of the controversy in the most convenient forum by the only court having all parties before it. The order granting the temporary injunction further provided:

Now it is, therefore, ORDERED, ADJUDGED AND DECREED that Plaintiff, William Gurvich, be, and he is hereby, enjoined and restrained, pending trial of this action, from (a) further prosecution of Cause No. 79-9366 in the Civil District Court for the Parish of Orleans, State of Louisiana, and (b) instituting and/or prosecuting any other suit against Third-Party Defendants Tyree and Hanisch in any other Court, save and except this 105th Judicial District Court of Nueces County, Texas.

Very little evidence was adduced at the hearing on appellees' application for the temporary injunction. The only testimony presented was that of Dr. James Tyree, one of the appellees. In summary, he testified: 1) that during the months of August and September, 1978, the appellees treated appellant at Spohn Hospital in Corpus Christi for a kidney ailment; 2) that appellees were not paid for their services and suit was instituted in Louisiana to recover the debt owing to them; 3) that a reconventional demand alleging malpractice had been filed by appellant in the Louisiana Case; 4) that there was no reason why he could not travel to New Orleans for trial of the Louisiana case; and, 5) that he was aware of the fact that subsequent to his treatment of appellant the appellant was treated by doctors in New Orleans at the Ochner Hospital. The only documentary evidence introduced at the injunction hearing, consisted of a "Motion to Set for Trial on the Merits" in the Louisiana Case and an order setting the cause for a trial on the merits on November 15, 1984. Findings of fact and conclusions of law were neither requested nor filed.

Appellant, in his first four points of error, contends that the trial court erred as a matter of law in granting the temporary injunction, and abused its discretion in granting the same because 1) the action for malpractice against appellees was filed by appellant in Louisiana prior to the filing by appellees in Texas of their action against appellant for debt and for declaratory judgment, and 2) appellees failed to establish a probable right to recovery, a probable injury in the interim or no adequate remedy at law.

Since no findings of fact or conclusions of law were filed, the trial court's judgment must be upheld if there exists any lawful theory supported by the record. Every issue sufficiently raised by the evidence must be resolved in favor of the trial court's ruling. New Process Steel Corp., E.R. v. Steel Corp. of Texas, 638 S.W.2d 522 (Tex.Civ.App.--Houston [1st Dist.] 1982, no writ). This is true even though the trial court is not required to file such findings of fact or conclusions of law. TEX.R.CIV.P. 385(b); Levinson v. Slater, 565 S.W.2d 337 (Tex.Civ.App.--Corpus Christi 1978, no writ).

The granting or denying of a temporary injunction is a discretionary matter for the trial court and its decision will not be disturbed on appeal unless a clear abuse of discretion is shown. Davis v. Huey, 571 S.W.2d 859 (Tex.1978).

In order to prevail on an application for temporary injunction, the applicant must 1) plead a cause of action, 2) prove a probable right to relief on a final trial, and 3) prove a probable injury in the interim. Sun Oil Company v. Whitaker, 424 S.W.2d 216 (Tex.1968).

In reviewing the trial court's determination, an appellate court must indulge all legitimate inferences from the evidence in a light most favorable to the trial court's judgment. Diesel Injection Sales & Services, Inc. v. Renfro, 619 S.W.2d 20 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.); Hartwell's Office World v. Systex Corp., 598 S.W.2d 636 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.).

A Texas court has the power to protect its jurisdiction by enjoining the prosecution of a suit subsequently filed involving the same controversy. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926). However, the power to enjoin proceedings already pending in a foreign jurisdiction should be exercised only by reason of very special circumstances. "It is said that the power to enjoin the prosecution of a suit in a foreign jurisdiction should be exercised sparingly, and not unless a clear equity is presented requiring the interposition of the court to prevent manifest wrong and injustice." PPG Industries, Inc. v. Continental Oil Company, 492 S.W.2d 297, 300 (Tex.Civ.App.--Houston [1st Dist.] 1973, writ ref'd n.r.e.).

Generally speaking, where a cause of action may be filed in either of two courts, the court first acquiring jurisdiction of the cause will retain jurisdiction thereof, and this rule extends upon principles of comity to cases of conflicting suits brought in the courts of sister states. Brand v. Eubank, 81 S.W.2d 1023 (Tex.Civ.App.--Texarkana 1935, no writ); Wade v. Crump, 173 S.W. 538 (Tex.Civ.App.--Texarkana 1915, no writ); see 21 C.J.S. Courts § 554 (1940); 43A C.J.S. Injunctions § 59 (1978).

One basis for granting an injunction, including a temporary injunction, is to prevent a multiplicity of suits. In such a situation, equity will allow a court to take jurisdiction of several controversies between the same parties involving similar facts and depending upon the same questions of law so that a decision of one will be practically determinative of all. Further, the existence of multiplicity of suits in itself constitutes the inadequacy of the remedy at law and will confer equitable jurisdiction. Repka v. American Nat. Ins. Co., 143 Tex. 542, 186 S.W.2d 977 (1...